Month: November 2012

Philosopher Alasdair MacIntyre once suggested that belief in human rights was akin to belief in witches and unicorns – by which he meant that the whole concept was illusionary and fundamentally flawed. As he put it:

“There are no such rights, and belief in them is one with belief in witches and unicorns.”

Listening to a lot of the discussion of the Leveson report, and in particular the cries from some journalists and politicians about the spectre of statutory regulation and how we need to rally round and protect the ‘free press’, I was tempted to suggest something similar.

‘There is no such thing as a free press, and belief in it is one with belief in witches and unicorns.’

After all, our press – and indeed the press in any other nation – cannot in any real sense be described as ‘free’. It is subject to the law of the land – and even in the US, the land of the First Amendment, that means that ‘free speech’ is not absolute. In the classical example, one cannot falsely shout ‘fire’ in a crowded theatre – but there are other restrictions too. Defamation law exists – even in the US, though it is less powerful, perhaps, than elsewhere. In the US the copyright lobby has a great deal of power – and wields it on videos on YouTube, for example, with ominous regularity to take down videos and music that is suspected of breaching copyright. There is other law that applies too – in the UK, for example, laws protecting the misuse of private information, against malicious communications, against speech that might incite racial or religious hatred and so forth. Plenty of law – and the UK still views itself as relatively liberal in terms of the way the law applies to the press.

That’s just the law – the press is subject to many other pressures that keep it far from free, from the power of the media magnates who own the major papers and TV stations, from the political pressure of the powerful. The so-called ‘Press Barons’ have a huge amount of control over not only their own papers but those of others – to call this ‘freedom’ in any real sense is very misleading indeed. This lack of freedom has its consequences – an apparently comfortable consensus about what should and shouldn’t be published, and a great deal of difficulty for those ‘small’ and ‘difficult’ voices that don’t fit the agenda of the press to get published. What we have in the UK doesn’t fit the image that I have in my head of what a truly ‘free’ press should be. It’s not a unicorn – it’s a rather scruffy looking donkey, past its prime and looking as though it’s just come through a gorse bush backwards.

Witches and Unicorns

And yet, when I go back to Alasdair MacIntyre’s quote, I remember my original reaction to it: he might well be right, but does that really matter? Is it the ‘existence’ in a fundamental, philosophical sense that matters about human rights – or indeed about the free press? Human rights may not really exist in that way – they may just be a helpful illusion, an aspiration, something that we can believe in, can rally round, and can use to bring about better things in the world. That’s one of the ways that I often look at them – I’m no rights ‘fundamentalist’, but I recognise the power of the language, and the force that it can be for good. I recognise that we may not be able to ever actually achieve anything that we set out in the great human rights documents – from the Universal Declaration of Human Right onwards – but that in fighting for them, in aspiring to them, we can help people to live better, freer, more dignified lives.

The same seems to me to be true about the idea of a ‘free press’. It doesn’t really exist. It may never exist – but we can aspire to it, and make our voices heard more freely and more clearly through that aspiration. We shouldn’t, however, rely on the illusion, and protect the illusion as though it were the real thing. The press, as it currently exists in the UK, is, as I have suggested, very far from the unicorn of my dreams – so let’s be willing to burst that illusion, and to create something newer, more like the ‘real’ unicorn. Let’s be willing to look at a new model of regulation – using a statutory basis, if need be – and understand that we’re not destroying a unicorn, just cleaning up an old donkey.

Our new unicorn, to me, could come from a very different source. Right now, what we have in the social media, in bloggers and tweeters, seems to me to be closer…. and has more chance of gaining the glossy silver coat, the sharp, pearly horn, the magical sheen of the unicorn of freedom that we’re looking for. Let’s protect that – by looking for defamation reform to protect tweeters and bloggers, for reform of public order and communications law, to block such oppressive legislation as the Snooperscharter, and to educate the courts as to how the social media really works. That’s the way to get a real free press….

The news that the Lib Dems are apparently ready to ‘ditch’ the Communications Data Bill – the Snoopers Charter – will come as welcome news to privacy advocates and other supporters of civil liberties. As with too many things ‘Lib Dem’, it’s still very much a maybe… but even if the Lib Dems do come out as firmly against the bill, that may not be enough to defeat it, even with the committee report, due out shortly, likely to be highly critical of the bill. The problem is a deep one, connected with the party politics of the UK. All three major political parties are deeply conflicted over the issues – and that conflict may well allow the proposal to be pushed through regardless of the apparent opposition of the people, of civil society, of the main players of the internet industry and many more. The situation is far from clear cut, however, and there are threads within each party that work both for and against the idea.

Tories…

The Tories, as very much the senior party in the Coalition, are to a great extent right behind the programme: after all, they’re the ones proposing it. In some ways the programme fits directly into some traditional Tory agendas: ‘Law and Order’ has long been central to Conservative politics, from the more extreme ‘hang ‘em and flog ‘em’ sections of the party to the slightly more rational ‘prison works’ mantra of Michael Howard et al. Moreover, a certain kind of old-fashioned patriotism could be said to fit in with the anti-terrorist agenda – and it’s easy to see the ‘if you’ve got nothing to hide, you’ve got nothing to fear’ argument used by those who essentially see criminals and terrorists as basically ‘evil’, distinct from and a threat to good, ordinary people.

On the other hand, there is another strong, traditional thread in Conservatism that goes directly against the idea of surveillance on this kind of scale and in this kind of way – and it should be no surprise that one of the most eloquent and consistent speakers against the programme has been David Davis. Civil liberties should be central to Conservative philosophy – and in particular the kind of civil liberties that protect against intrusion into privacy. An Englishman’s home is his castle, after all! What’s more, the kind of programme envisaged smacks of ‘big government’, and the ‘nanny state’, things that a Tory should instinctively reject. David Davis expresses this view very well – and I’m sure what he says resonates with a lot of Tory MPs and Tory supporters.

Labour…

Labour may well be even more conflicted over the issue than the Tories. On the one hand Labour is supposed to stand up for the little people against oppression and control, and there is a strong association between the left wing and the ideas of freedom that this kind of a programme deeply undermines.Anyone who remembers the Thatcher years knows all too well how the forces of the police and even military intelligence were used against the unions (and not just during the miners’ strike) and against ‘left wing’ groups such as CND – the recent scandal of long term police infiltration into environmental groups (including long term relationships between undercover officers and and activists) fits into this pattern.

…and yet there are three strong factors that make Labour far from certain to oppose the programme. Firstly, there’s an authoritarian streak on the left – it would be unfair to suggest it might be a touch ‘Stalinist’, but there’s a certain degree of a ‘command and control’ attitude from some, and a sense that government needs to take a grip of things in this kind of a way. Secondly, there’s the long term need of the Labour Party to counter the Tory argument that Labour are ‘soft’ on crime – this attitude verged on paranoia during the last Labour administration, and is still clear in the current Labour party. Thirdly, there’s the deep problem surrounding the ‘War on Terror’ and the Labour Party’s role in it: Tony Blair and Gordon Brown were more than complicit in the ‘War on Terror’, they drove it forward. These three factors produced a series of desperately authoritarian Home Secretaries, each bringing in more draconian and anti-civil libertarian measures than the last. David Blunkett, Charles Clarke and John Reid presided over some of the most appalling pieces of policy in living memory, from the push towards ID cards to the data retention measures that ultimately lie behind the current programme.

For Labour, the challenge is to break with the past – to admit (or at least recognise) that mistakes were made by the last administration, and to be brave enough to say that Blair and Brown got this wrong. That last part it really hard to do for politicians at the best of times – and the signs are not good. Yvette Cooper’s stance against the idea of giving prisoners the vote show that the authoritarian streak in Labour is still present and strong.

The Lib Dems

In one way, the Lib Dems should be the least conflicted – which is, perhaps, why they’re the party that seems readiest to come out against the proposal. These measures are pretty fundamentally ‘illiberal’, and the Liberal Democrats as a party should be simply and directly against them. A few short weeks before the last general election I heard Nick Clegg speak excellently at the Privacy International 25th Birthday Party, talking directly about the rise of the ‘database state’ under Labour and how directly opposed to such things he was both personally and politically. For the Lib Dems, there really shouldn’t be an issue – and if they were currently in opposition, against a majority Tory government, I’d be willing to bet a lot of money that as a party they’d oppose the measure.

…but they’re not in opposition. They’re part of the coalition, and that brings with it several pieces of baggage. First of all, they have to work with the Tories – and in particular, Nick Clegg has to work with David Cameron. Secondly, they have to appear ‘governmental’ – and Nick Clegg wants to look ‘statesmanlike’, which many politicians seem to think means doing the wrong, illiberal and unpopular thing, to appear more ‘responsible’. Thirdly, if they come out against this, many of their supporters may ask why they didn’t come out against other policies – student fees, privatising the NHS, welfare, legal aid etc – which were just as much against ‘liberal’ principles. To an extent they’re hoist with their own petard. They’re part of this government now, and may feel they have to ‘see it through’. There have already been so many ‘betrayals’, one more hardly makes any difference….

Three parties, alike in turmoil

So all three parties have their internal conflicts – which makes them ripe for the ‘security lobby’ to exploit. It does, also, give an opportunity for opposition to the bill to be generated. The excellent Privacy International, the Open Rights Group, Big Brother Watch and others have worked very hard to oppose the current measures. The numerous written submissions to the parliamentary committee (which can be found here) were excellent – and substantially all highly critical of the proposal from a wide range of perspectives. If the committee’s report reflects the evidence submitted, their report should be devastating – and yet it may not be enough, if the political forces in favour of the ‘hard-line’ surveillance approach are too strong.

I’d like to think that these forces are not overwhelming – and that the ‘good’ side of each of the parties is able to resist, and to stop us being railroaded into something that, ultimately, I don’t think that many people, whatever their political persuasion, either want or believe that we really need. The politics of privacy are complex – one of the things that I have found particularly refreshing since I started working in the field is that is can unite people with otherwise very different political perspectives. Let’s hope that this unity is enough.

Note: this blog post is a reworking of my original posting in April, when the Bill first emerged… that can be found here

There’s been a lot of talk of the ‘chilling effect’ recently. The Leveson report, due out this week, is going to have a chilling effect, we’re told. Lord McAlpine’s threatened defamation suits on tweeters are having a chilling effect too – I was even quoted as saying so myself. So what is this chilling effect anyway? Even mention the words and it sends shivers down the spines of free speech advocates. You’re faced by icy glares – and can find yourself frozen out of discussions. Suggest that there might be some speech that would be better off ‘chilled’ and it doesn’t exactly make people warm to you.

None of us want twitter to turn tepid – if all we get is lukewarm discussions of celebrities and cold-hearted press releases from politicians then what’s the point? And yet sometimes, just sometimes, things can get too hot to handle on twitter. Arguments reach boiling point more often than they should, tempers flare and we all turn into hotheads and firebrands. Does it help? There are times when it does – when we need fire in our hearts and the heat of passion – and I for one would never want to lose that. There are other times, however, when it goes over the top, when the ‘freedom’ of twitter brings out the torches and pitchforks, and we seem to turn into a fiery mob. What is needed is a cool head. Now, for me, is one of those times. If we can stay cool, calm and collected, we can turn this possible chill into something that helps us – but we do need to stay cool.

If we can do that – if we can meet these challenges without overheating – there’s an opportunity here, not just a threat. Just as the Twitter Joke Trial eventually produced the right outcome – after a long and painful fight, for sure – we might be able to produce a good outcome here. If any of these twitter libel cases reach court we might get a better result than we realise. And if we don’t, as I suggested in my blog for the Justice Gap, we have a rare opportunity to change the law – the defamation bill is going through Parliament right now. Cool heads – not hot heads – could help drive though the changes needed to produce an atmosphere that protects what we love about twitter. What we need from twitter. So let’s cool down a little. Chill… but in the right way. Fix our icy glares on those who want to use this hot atmosphere to produce the kind of chill we don’t want, and say no. Keep cool – but don’t lose the passion in our hearts.

I wrote a piece yesterday, ‘Choose your dystopia‘ in which I looked at some of the best dystopian visions and how our current government seems to be using them as templates rather than as nightmares to be avoided… and I invited people to suggest some other dystopias that might also be relevant. Some of them, the first in particular (for which I thank @guy_herbert and @EinsteinsAttic), were so good that they warranted another post… so here it is!

Brazil

Terry Gilliam’s masterpiece is one of my all-time favourite films – from the astonishing visual imagery and the glorious absurdity to the deep tragedy that is the underlying message.

The parallels with the current government are many-faceted. Brazil paints a picture of a nation of underwhelming greyness characterised by a government of incoherence and incompetence – omnishambles anyone? It posits a society where the slightest irritant is labelled a terrorist – Robert De Niro’s rebellious plumber is a brilliant creation. Tony Blair may have started the ball rolling in this way, but Cameron and Clegg have taken that ball and run with it. Their embrace of the likes of the Snoopers Charter, Secret Courts and so forth are all predicated on the kind of illusionary enemies that are the essence of Gilliam’s nightmares. The ultimate fate of poor Sam Lowry is a cautionary tale for anyone advocating a breaking of conventional rules at a time of emergency….

Minority Report

Even those of us who are far from fans of Tom Cruise can find things to enjoy about Minority Report – the strength of the underlying Philip K Dick story and the quality of the film-making mean that even Cruise can’t stop it being an interesting, some might say excellent film.

What are the parallels here? Well, once again we should look for the Communications Data Bill – the Snoopers’ Charter. Whilst Minority Report relies on the prescience of psychics to predict crime and stop it before it ever happens, the Snoopers’ Charter can and almost certainly would use the predictive ‘ability’ of computer-based profiling to try to assess potential criminals, terrorists or paedophiles. If ‘we’ can work out who ‘they’ are before ‘they’ do things, then ‘we’ should be able to stop ‘them’. The accuracy and reliability of these predictions may well be getting better – and we can be pretty sure that the ‘experts’ in GCHQ will be looking to this kind of thing more and more. The pitfalls – and the risks to civil liberties – are another matter. Moreover, the idea of convicting people before they do things – for threatening behaviour rather than actually doing damage – has parallels with our willingness to convict people for what they post on Facebook or Twitter – mentioning riots rather than actually perpetrating them, or posting pictures of burning poppies rather than actually burning them…. Some kind of thought police? Hmmm….

The Old Men at the Zoo

A book significantly less known than most of those I’ve mentioned so far, but one no less worthy. Angus Wilson’s 1961 book portrays the struggles of a succession of old men running the London Zoo whilst politics change around them.

What has this to do with our Government? Well, one of the attempts to bring the zoo to relevance and success is to harken back to the old, traditional ways of Britain – to try to recreate an ideal vision of the Great British countryside, with foxes and badgers, lovely rolling hills. It’s a romantic vision, one based on a rose-tinted and illusionary vision of what once was – and is, of course, doomed to failure…. and is pretty much exactly what Michael Gove is trying to recreate with his plans for the education system. Indeed, Michael Gove would play the part of one of the Old Men at the Zoo perfectly – and the results would be the same.

Logan’s Run

This classic SF movie from the 70s portrays a post-apocalyptic world populated only by young, good-looking, people. Everyone is a perfect specimen – there are no old people, no sick people, no disabled people

What are the parallels here? Well, I don’t think Iain Duncan-Smith has contemplated actually killing any less-than-perfect physical specimens, but the treatment of disabled people under this government has been pretty horrendous. The result has been a significant increase in abuse and discrimination towards the disabled – some have even labelled it a kind of demonisation – and a sense that the government would much rather they simply didn’t exist.

Choose your dystopia….

I’m sure there are more – and I’m open to suggestions…. but there are certainly enough to be worried about! Does this government want us to think of them as a nightmare? It sometimes looks that way…

I’ve always been a great fan of dystopian fiction – nightmarish visions of where our society is heading. I started reading them in my teens – well before the year 1984 – and still read them, and watch the various film and TV versions with great interest. So do many people. I do wonder, however, whether our current government has been reading and watching them rather too much – and rather misunderstood the point. In many ways, their recent policies and practices seem to be moving towards making them a reality. The trouble is, they don’t seem to have quite decided which of the dystopian visions they prefer – and may indeed be heading for a mish-mash of them all!

1984

The first and perhaps best known of the dystopian visions the government appears to be emulating is George Orwell’s 1984. Indeed, had the government of Big Brother had the facilities which the government is attempting to bring in with its Communications Data Bill (about which I’ve blogged many times – e.g. here), it would have been ecstatic.

Through the systems envisaged in the Communications Data Bill, the current government can get surveillance of our every action on the internet, our every phone call, our movements (through the geo-location data on our mobile phones), who and what we like, our taste in music, even the books we read if we use Kindles or iPads. It can use this data and the sophisticated profiling techniques developed by the internet industry to develop detailed pictures of pretty much every aspect of our lives. With the Communications Data Bill, Big Brother is more than just watching you….

Brave New World

Aldous Huxley’s Brave New World was always my ‘favourite’ dystopia – and in lots of ways I suspect his nightmare visions are closer to reality than Orwell’s 1984. It envisages in some ways a ‘softer’, more subtle form of control – a world where consumption is the primary motivation for everything, and where people are directed to consume exactly what they’re told.

The consumerism is something that the current government – and indeed most previous governments in this country – would immediately recognise, but there are other elements which match our government’s vision. The first is the mantra of ‘choice’. In Brave New World, everyone thinks they have choice – to play Electromagnetic Golf or Escalator Squash or Centrifugal Bumble-Puppy. Lots of ‘choice’, but all those choices meaningless, and designed to manipulate people into doing what’s to the benefit of the elite. Ring any bells?

There’s another element that might ring some bells: the society in Brave New World is strictly class based – you’re given your class at birth, and that determines everything. Each class is carefully conditioned to know their place, and it’s the Alpha plusses who rule… We may not have sleep-teaching in today’s society – though Michael Gove might well approve if we did. And when Andrew Mitchell was accused of having told some police officers to know their place, it wasn’t so much the actual words that rang true but the way that they fitted with the image that many people had of the government….

The Trial

Kafka’s The Trial is a very different kind of dystopia, but one that also seems to be having echoes for this current government:

There are many deeply disturbing aspects to The Trial, but the one that has the most direct echoes today is the idea of a secret trial, where no-one really knows what’s happening and why. In liberal societies, justice is supposed not only to be done but to be seen to be done – and due process is supposed to be something that we can follow and we can rely upon – if trials are secret, unaccountable and invisible, that is lost…. and yet that is the essence of some of the proposals currently being put forward by the government in the Justice and Security Bill (see here for a Q&A on it). Mind you, the whole system of ‘justice’ for ‘terror suspects’ of not only this government but its predecessor has had more than a touch of The Trial to it: people detained without charge, without trial, and with the evidence against them kept hidden…

Robocop

The 1987 movie Robocop (to be remade in 2013/2014) portrayed a nation in financial crisis, people afraid of crime, and the overwhelming spectre of privatisation of police operations.

Most of that scenario fits very well today – with the likes of G4S in the role of OCP. With the newly elected Police and Crime Commissioners in place, the possibilities for selective ‘outsourcing’ of operations have increased significantly – and the opportunities for the profit motive overwhelming the need to ‘serve’ the public have similarly grown. Those opportunities are what underlie the dystopian nature of the society of Robocop…. and though we don’t (yet) have the technology of Robocop, the growing use of Tasers, of drones and so forth make it not that far from what we have seen.

V for Vendetta

Alan Moore’s seminal graphic novel, later turned into a film, seems to be the latest dystopian vision aimed for by the government of David Cameron.

His latest vision – to restrict the use of judicial review, because it was ‘wasting time’ and getting in the way of economic growth – would be disturbing enough for anyone interested in due process, in accountability and in justice, but the language and imagery he used is perhaps even more disturbing. It’s in this imagery that the echoes of V for Vendetta come in. Cameron suggested that our current economic crisis is akin to being at war – and that as a consequence we should use similar ’emergency’ powers to those employed during the war.

“Normal rules were circumvented. Convention was thrown out… …Well, this country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race.”

It’s exactly this kind of evocation of ‘spirit’ that characterises the government in V for Vendetta – echoing the similar stories in 1984, a state of constant war. Allowing governments to circumvent normal rules, to avoid due process, is very often the start of a slippery slope of the worst possible kind. I might be accused of following Godwin’s Law by suggesting a similarity with pre-war Germany – except for the fact that Cameron himself brought Godwin’s Law into play by mentioning Hitler himself!

Choose your dystopia

All the different elements of the dystopian vision seem to be coming into play together. We’ve got the consumerist, class-controlled society of Brave New World, the ever-present surveillance of 1984, the secret courts and hidden ‘justice’ of The Trial, the privatised and profit driven policing of Robocop, and all wrapped up in the hysterical and hyperbolic rhetoric of V for Vendetta. Which dystopia will Cameron choose? All of them, it seems….

In the light of all the current interest, I’ve put together a little basic guide to defamation on twitter. This isn’t anything like ‘legal advice’, and please remember I’m an academic, not a practicing lawyer… but this should give you some idea of what defamation means, and how it might apply on twitter! Remember too, that this is based on the law as it exists in England and Wales.

What is a defamatory statement?

The basic principle is that a statement is defamatory if it substantially affects, in an adverse manner, the attitude of other people to the complainant or has it has a tendency to do so. This definition is very broad ranging so many ‘nasty’ statements about another person come into the range of potentially defamatory statements. Note there is no need to show that the statement does actually affect what other people think of the complainant: it is enough that the words have a tendency to do that.

Can anyone be defamed, or only famous people?

Everyone has a reputation – and anyone can be defamed!

If the statement is true, is it OK?

Many true statements about a person are defamatory. So to say of a convicted murderer that he is a murderer is defamatory but true. If you, and you have the burden of proving this, can prove what you said was true then you MAY have a defence available of ‘justification’. Can you prove it? See defences below!

Do you need to name the person for it to be defamation?

To be able to bring a claim a person must be able to prove that what was said pointed to them. Normally this will require that they be named but that it is not always necessary All that’s needed is for it to be possible for a ‘reasonable reader’, to be able to come to the conclusion that the statement referred to the person. If they can ‘join the dots’, then even without the name, the statement could be defamatory.

Are you OK if you put ‘allegedly’ before your statement?

No. This is an urban myth. It doesn’t help at all. Similarly, saying ‘I’ve been told that…’ or words to that effect don’t help.

Is it OK if it’s just a joke?

Not necessarily. Some ‘jokes’ have been decided to be capable of being defamatory. The question in every case is whether the words read in context adversely affect a person’s reputation, or have the tendency to do so. ‘Jokes’ can have this effect.

What kind of defences can you have?

The main defences for the kinds of statements made on twitter are likely to be:

Justification – that the words are ‘true in substance and in fact’. This essentially means that you’ve told the truth, and in such a way that doesn’t imply something untrue either, e.g. by using only part of the truth, by quoting out of context etc. Note that you have the burden of proving that the words are true.

Honest comment – if you’re offering an opinion (and not stating a fact) on a matter of public interest, and your opinion is based on true facts, then you may be able to rely on the defence of honest comment. Putting ‘in my opinion’ at the beginning of the sentence does not automatically mean the statement will be treated as such. The question the courts ask is would a reasonable reader regard the statement as one of fact or comment. So ‘in my opinion, X is a paedophile’ would be likely to be treated as a statement of fact, while ‘X is a loser’ would in all likelihood be treated as comment. The line between the two is however very imprecise. Even if all the above elements are shown to exist by the defendant, the defence will be defeated if it was made out of malice.

The Reynolds defence – this is a defence originally developed to protect journalists, who do their investigation and write their story with appropriate diligence. If they do that, and the story is about a matter of public interest, then even if they get their facts wrong, they may be protected. This is complex – and for most non-journalist tweeters is unlikely to apply.

Can a tweet be defamatory?

Yes – tweets can be defamatory, and are not out of the reach of the law. Tweeps have had to pay very high damages to those that they have defamed even where the offending tweet has not been read by many people.

Can a re-tweet be defamatory?

Yes – in law, every ‘republication’ potentially creates a fresh claim. The idea that putting in your bio ‘RT doesn’t mean endorsement’ will probably not provide you with protection though the question has not been tested in the courts.

Am I safe if I ‘protect’ my tweets?

Not necessarily – you can defame someone even if you only send the information to a small number of people. It depends on who those people are, rather than how many there are of them. However, if only a very small number of people ever see your defamatory, the court may strike out any claim for defamation – it has happened!

Can twitter accounts be linked to individuals?

Yes. You may think you’re anonymous, but more often than you realise, you can be found – both technically and legally. Locating people via IP addresses etc is possible, and though the use of a legal mechanism called a ‘Norwich Pharmacal Order’ an information service provider such as Twitter can be ordered to provide what details it has about you.

When you look at all of this together, it means that people need to be careful what they tweet! I would have hoped that the last couple of weeks had made that quite clear! My thanks to Professor Alastair Mullis in the preparation of this blog post.

I was part of a panel at the Internet Service Providers’ Association (ISPA) conference earlier today, discussing the Communications Data Bill – and whether it struck an appropriate balance between security, privacy and industry. This blog post is a summary of my talk…

…that data and systems won’t be vulnerable. They always are! – and even those who we should most trust to look after our data and our systems have failed to do so. HMRC, responsible for all our tax and benefit data, lost more than 25 million people’s data on a couple of CDs. The MoD, responsible for the defence of the realm, has lost a whole number of laptops, including some with the personal and financial details of all serving and pensioned members of the Armed Forces. Swiss Banks have lost the most private financial data of their most valued clients.

…that the ‘good guys’ won’t abuse the system. The bill provides almost no accountability – no warrants or equivalents are needed so long as a sufficiently ‘senior’ officer authorises access. Precisely what this ‘seniority’ means is undefined – it’s up to the service involved. Have we learned nothing from phone hacking and Leveson? From Hillsborough? Trusting the police is good, but we also need transparency and accountability. Two new examples found this morning highlight this: in Sweden, for example, this autumn 15 officers have been reported for inappropriate access to data bases… (link in Swedish), while from the US, a female police officer has just won a case worth $1 million against colleagues who accessed their database to look at her photo ID.

…that there won’t be any function-creep. There are very few limits in legislation – and there has almost always been function creep where ‘anti-terror’ legislation is concerned, and indeed where new tech has been brought in. It is easy to slip from dealing with terrorists and paedophiles to fly-tipping, dog fouling and trying to get your child into a particular school…

Two that mean it’s unlikely to work…

It is wishful thinking….

…that the real ‘bad guys’ will be caught. They rarely are – and the sort of people that we’re talking about are experts at concealment and so forth. Terrorists, paedophiles, even, if you consider them as bad, file-sharers. Again, the recent evidence over child abuse over the last 30 years from the Savile and North Wales stories should give people pause for thought What’s more, those incompetent enough to be caught by this bill could be caught in any number of other ways!

…that it will be possible to enforce on many foreign-based providers. Some will be unwilling to comply, some unable to comply, some impossible to force. For this tactic to work, it has to be universal – and in reality it won’t be. If these tactics fail, not just will the whole process fail but pressure will be put on UK ISPs to gather the data in some other way.

Others that need to be considered very carefully

It is wishful thinking…

…that there won’t be any unforeseen consequences – there generally are, and often bad ones. Just as one example, systems developed could well end up being sold to oppressive regimes. What we do here could impact upon the rights of those already suffering in oppressive regimes. It might even be that the costs are a result of wishful thinking – my discussions with the real experts at ISPA suggest that they almost certainly are!

This is not how legislation should be written…. or conceived.

Some elements of these bits of wishful thinking can be addressed by better and more carefully written legislation – more checks and balances, more precise and appropriate determinations of who should be allowed access to what and so forth – but others are inherent in the overall approach.

Any system based on universal gathering has these kinds of problems. All data, however held, may be vulnerable. Function creep can only be guarded against by not building the systems or drafting the legislation in the first place… What’s more, the ‘normalising’ effect of supporting the whole idea of universal surveillance is not something that can be addressed by tinkering at the edges or by more carefully drafting the legislation.

Making the idea of online surveillance somehow acceptable, numbing us to the ideas, is something that needs to be taken very seriously indeed. As well as the direct impact, it has the potential for significant chilling effects, and implications not just for privacy but freedom of expression, freedom of assembly and association, even freedom of thought and religion.

None of this is to say that the idea is not inconceivable – we should be willing to consider all ideas – but to be justifiable, in this context, the benefits would have to outweigh the risks. As the risks are so significant, that means the benefits would have to be very great – and demonstrated to be very great. In practice, there doesn’t seem to have been any demonstration of benefit at all – instead, we are expected to take it all on trust.

That’s the last, and most important issue of wishful thinking. A liberal democracy is predicated on a degree of trust – but more importantly on appropriate checks and balances, transparent systems, and accountability.

Conclusion

My overall conclusion – the whole thing should be abandoned. Instead, we should look at:

Targeted rather than universal surveillance

Warrants or their equivalent before the collection

The idea that we should have the right not to be monitored – the default should be no surveillance.

This last is the key for me. We should normalise privacy, not normalise surveillance. That not only respects people’s rights, but it can help build trust. When we have more trust, we have a better environment for people, for business, and even for the intelligence services.